2004 (3) TMI 661 - AT - Central Excise

Summary

Issues:
1. Authorization to file appeal by the Commissioner against his own earlier order-in-appeal.
2. Interpretation of legal provisions regarding time limit for filing refund claims under Section 11B of the Central Excise Act, 1944.
3. Validity of the show cause notice in rejecting refund claims for consignments.
4. Reviewing an incorrect order ignoring legal provisions.

Issue 1: Authorization to file appeal by the Commissioner against his own earlier order-in-appeal
The Respondent's counsel raised a preliminary objection regarding the authorization of the appeal by the Applicant Commissioner against his own earlier order-in-appeal. Citing a previous case, the counsel argued that a Member of the Board cannot review an order passed by him unless new facts or material have emerged that would render the order illegal or improper. The Appellant's counsel contended that the earlier order-in-appeal was not legal as it incorrectly stated there was no time limit for filing the refund claim within six months of the relevant date, which was a misinterpretation of the law. The Appellate Tribunal held that there is no legal bar for reviewing an incorrect order passed earlier, especially when the Commissioner realized the error and new material, in the form of overlooked legal provisions, came to his attention. Thus, the objection raised by the Respondent's counsel was rejected.

Issue 2: Interpretation of legal provisions regarding time limit for filing refund claims under Section 11B
The Appellant argued that the order-in-appeal was incorrect as the refund claims were filed beyond the six-month limit from the date of export, as specified under Section 11B of the Central Excise Act, 1944. The Appellate Tribunal agreed with this interpretation, emphasizing the clarity of the provisions and the factual discrepancy in the filing dates of the refund claims. Consequently, the impugned order-in-appeal was deemed incorrect and set aside, with the matter remanded for a fresh decision in accordance with the legal provisions.

Issue 3: Validity of the show cause notice in rejecting refund claims for consignments
The Respondent's counsel highlighted that there was no notice for rejection of the refund claim in respect of the 11th consignment, questioning the validity of the show cause notice. However, the Appellant's counsel argued that the notice covered all 11 consignments, and the objection was raised belatedly. The Appellate Tribunal found merit in the Appellant's argument, stating that the respondents had been duly notified regarding all consignments in the initial part of the show cause notice. Therefore, this objection was not considered substantial.

Issue 4: Reviewing an incorrect order ignoring legal provisions
The Appellate Tribunal emphasized the importance of reviewing incorrect orders that overlook specific legal provisions. It held that there is no legal impediment to rectifying an erroneous order, especially when the Commissioner, in his new capacity, realized the mistake and was legally empowered to authorize an appeal against such incorrect orders. The Tribunal concluded that the Commissioner's newfound awareness of the overlooked legal provisions constituted new material, justifying the review and setting aside of the impugned order-in-appeal.

In conclusion, the Appellate Tribunal allowed the department's appeal by remanding the matter to the Commissioner (Appeals) for a fresh decision in compliance with the legal provisions, granting the respondents an opportunity to present their case regarding the 11th consignment.